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How long should a written warning be kept on file?

How long should a written warning be kept on file?

The answer to the question ‘how long should a written warning be kept on file?’ is that it depends on the severity of the sanction imposed, whether or not a time limit is specified in documentation, such as the disciplinary procedure of the organisation, or whether there is additional detail provided in the disciplinary procedure such as about how warnings will be handled. Generally, the more severe the sanction the greater the length of time that the sanction is kept on file for. For instance, a final written warning could be on file for a year (or perhaps even longer) but more minor sanctions such as a first written warning could last for 6 months. The timeframes relating to how long a written warning should be kept on file for are determined by the particular organisation and should always be made clear to the individual concerned.

What does keeping a warning on file mean?

Most people are familiar with the basic principle that if an individual is found guilty of misconduct  the warning would be kept on file, or remain live for the period of time specified. If the individual is found to be responsible for further misconduct, while the previous sanction is still live, then both episodes of misconduct can be taken into account. For example, a person had a final written warning (which lasted for 12 months) and was found guilty of further misconduct within that period which would have resulted in a first written warning. In that scenario, neither offence would individually result in dismissal, but taken together (because the first occasion was still on file) dismissal may be more likely. However, it is for the disciplinary panel to decide what the appropriate sanction should be after hearing all the evidence and dismissal should not be regarded as automatic. For more information on the disciplinary process read our blogs How to be successful at a disciplinary hearing and Does gross misconduct always lead to dismissal?

 

Why is it important to say how long a warning will be kept on file, and provide details regarding  what will be done with them?

Because being clear about how long  a warning will be kept on file, or when such behaviour can be taken into account by the organisation, is a way of demonstrating that the organisation is behaving in a transparent and fair way.

Can organisations take into account a previous sanction, or the misconduct relating to it, at a disciplinary hearing if the time limit of that sanction has expired?

It is common for both individuals and organisations to think that once the time limit on a warning has expired that is the end of the matter, but that is not necessarily so. The situation is more complex than that. Essentially, whether the actions of the organisation are found to be fair or unfair will depend on all the circumstances, and the disciplinary procedure is simply one of those factors.

An organisation’s approach regarding how long warnings should be kept on file is only one aspect of the disciplinary process. It is important to ensure that every element of the process is approached with care and undertaken in a fair way.

 A disciplinary hearing is likely to be a challenging experience for all involved, and particularly when dismissal is a potential option. The disciplinary panel will need to decide not only whether the person is responsible for what has been alleged, but also what the appropriate sanction should be.  For more information on the discretion available to the disciplinary panel read our blog does gross misconduct always lead to dismissal?

It is common for organisations to spend a substantial amount of time on deciding whether or not the person is responsible for the alleged wrongdoing, and very little on what the appropriate sanction should be.  That approach would be a mistake as the level of the sanction to be imposed requires careful consideration too.

There is much for a disciplinary panel to consider, and it may seem like a minefield. For example, what should the process involve? How should the issue of sanctions be approached? If expired warnings can be taken into account at a disciplinary hearing when would that be permissible? How would that approach impact on the organisation’s disciplinary procedure?

An individual who has been dismissed may feel that the decision was unfair and, subject to having the required length of service, may pursue an unfair dismissal claim. Ultimately, it will then be for the Employment Tribunal to determine the outcome.  As referred to earlier, there are likely to be a substantial number of factors which will be considered, and it is therefore particularly important not to focus on one element at the expense of the others.

At Plotkin & Chandler we work exclusively in the areas of HR and employment law and assist both individuals and organisations.

If you are an organisation and would like a HR documentation review, or you would like to discuss making amendments to what is in place, we can help. We also offer HR consultancy and training on a range of topics such as how to run a disciplinary hearing. If your organisation is facing having to defend an Employment Tribunal claim we have expertise in all aspects of the process including Employment Tribunal representation. To discuss your needs, and the ways that we can help, call us on 020 3923 8616 or email us on info@plotkinandchandler.com

If you are an individual who would like advice regarding a disciplinary process, or you would like to discuss bringing an Employment Tribunal claim call us on 020 3923 8616 or email us at info@plotkinandchandler.com

 

 

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